MS, R (on the application of) v Secretary of State for the Home Department

This is an application for judicial review brought with permission of Nicola Davies J. The three decisions which are challenged are:-

The Claimant was born in Poland on 3 December 1977 (now 39 years old) and is a Polish national.

Between July 2002 (when he was 23) and December 2014 he was convicted of various criminal offences in Poland. These included burglary convictions in 2005, 2007, and 2008; theft convictions in 2012 and 2013; convictions for reporting false danger on two occasions in 2014 (resulting in a sentence of 10 months imprisonment for the first offence and a suspended sentence of 1 year 6 months for the second) and further burglary convictions on 13 February 2014 (for which he was sentenced to 1 year in prison, suspended for 5 years) and 17 March 2014 (for which he was sentenced to 1 year in prison suspended for 3 years and a supervision order). According to his witness statement, he had a drink problem in Poland, which continues.

On or about 23 November 2015 the Claimant accepted an offer of work and accommodation in the UK and was taken across Europe and placed in a house in Birmingham with other men and put to work at a recycling plant and, subsequently, on night shifts at a car parts manufacturer. He was controlled by men who took most of his wages and threatened him when he complained. In May 2016, the Claimant escaped, and found a squat to live in. Through his attendance at a soup kitchen, the Claimant found his way to the Hope for Justice charity on 2 June 2016.

On 20 July 2016 a positive conclusive grounds decision was made recognising him as a victim of human trafficking. Earlier, in March or April 2016, the police told him that his traffickers had been caught and charged and there was expected to be a trial in 2018.

On 2 August 2016, a Court in Poland activated a previously suspended sentence of 1 year. The Claimant had not kept in touch with the friend whose address he had given the probation service and it seems that it was the Claimant’s loss of contact with his probation service which led to the activation of his suspended prison sentence. It is not disputed that, upon his deportation to Poland, he will be incarcerated for, presumably, the one year term of his activated prison sentence.

Between June 2016 and February 2017, when he was detained by the Home Office, the Claimant lived in safe house accommodation provided to him because of his status as a trafficked person. This was funded by the Home Office.

Because the challenged decisions of the Home Secretary were based partly on concerns about the Claimant’s behaviour, as well as his criminal convictions in Poland, I will say something about his behaviour in the safe house accommodation.

The Claimant entered safe house accommodation (funded by the Home Office but provided by City Hearts and run by the Salvation Army) in June 2016. He was transferred to accommodation elsewhere provided by a registered not for profit Community Interest Company (which I will call the Safe House Society) in October 2016. Concerns about his drinking surface in the Salvation Army records on 1 July 2016 and the Claimant was warned. On 8 September 2016 he was thought to have been drinking again (which he denied) and three neighbours complained about the noise he was making in the early morning. He was given a written warning. On 15 September there was another alcohol related difficulty, and he had a disagreement with a new arrival at the house over communal facilities. In October, he was moved following a violent incident which it is not suggested he was responsible for. On 13 October he was drunk and missed a support session. On 17 October it was noted that he had been drinking heavily all weekend and missed a GP appointment. His support worker spoke to him and he admitted an alcohol problem, which was addressed with him in the following weeks. On 4 November he was noted as “very intoxicated” but on other occasions he appeared well. He tended to turn off his phone, or not to answer it, which created difficulties for his support worker. On 8 December 2016 there was a complaint that he was collecting cigarette ends from the street and drying them out in the communal microwave. On 12 December, he was “slightly intoxicated”. He missed three appointments with his Salvation Army worker to open a bank account, the last one on 21 December, but he was sober when seen on 22 December. On 3 January and 4 January he was intoxicated again, and “heavily intoxicated” on 6 January; he had also smoked some drugs. On 16 January he was intoxicated and admitted being under the influence of another substance. The drugs mentioned elsewhere in the papers are marijuana and spice. The Salvation Army worker told him he could not come into the office in that condition. There are other notes of intoxication on 23 and 24 January 2017.

On 10 January 2017, the Home Office spoke to a woman at the Safe House Society, and was told that the Claimant’s behaviour “has become worse he is drinking very heavily and becoming very aggressive.” On 23 January 2017, the same Home Office worker was told by the same person at the Safe House Society that the Claimant “is an alcoholic and is making threats to members of staff and other people residing in the safe house which has resulted in her calling the police.” On 25 January 2017, the Home Office referred to having been told by the Safe House Society “he is alcoholic and violent and never sober”. On 31 January 2017, an internal Home Office email said “I understand and appreciate that he would pose a risk to the public if he became street homeless, but we are also concerned for the safety of staff at the Safe House who have to deal with him and other residents.”

On 27 January, Salvation Army records show the Claimant asked to see a doctor about his drink problem; meanwhile, notes of his intoxication continue into February and there was a complaint about him playing music during the night. There are notes of him ringing the police and ambulances and then disappearing; and, on 6, 7 and 8 February, notes of him smoking drugs, “excessive drinking and substance misuse”.

On 8 February, the Safe House Society emailed the Home Office saying:

“He is drinking alcohol excessively now, he attends the office in a loud, drunken state, he is continually stating that he is ill and needs an ambulance, then when he calls for an ambulance he is taken to hospital but then walks out without seeing a doctor. He is also regularly smoking drugs and yesterday whilst out on an appointment with his support worker at a GP surgery he openly lit up a cigarette containing cannabis therefore the appointment had to be cancelled.”

A Salvation Army note on 13 February 2017 includes the following note from the Home Office (possibly from within their Modern Slavery Unit): “We are very concerned about his behaviour and for the safety of staff and other residents in the safe house so have advised our immigration colleagues that they need to take urgent steps to detain him elsewhere; we have been clear to them that this will be the final extension as there is no other basis for allowing him to remain in the safe house.”

An email from the Safe House Society to the Home Office on 6 July 2017, well after the Claimant’s stay at their accommodation had ended on 15 February, said “During his time at our accommodation the client was dependent on alcohol and this would sometimes impact on his engagement of appointments, seeking employment etc.” It said that, after he had been served with his Notice of Liability to Deportation (on 30 December 2016), his “consumption of alcohol increased and it became difficult to engage with him.”

The first challenged decision is dated 26 January 2017. This was the date of the Defendant’s decision to deport the Claimant (which is now before the First Tier Tribunal) and of the decision which accompanied it to certify under Regulation 24AA of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) that the Claimant’s deportation to Poland would not be in breach of the European Convention on Human Rights, so that he could be deported without waiting for the outcome of any challenge to the deportation.

Before the decision itself, a formal deportation warning was drawn up dated 29 December 2016 and the Claimant was served with it and signed for it on 30 December. The reason given justifying deportation was “As a result of your criminality your deportation is considered to be justified on grounds of public policy and/or public security”. The burglary conviction on 17 March 2014 and activation of his suspended sentence on 2 August 2016 were cited.

The Claimant was asked to respond, but there is no document on the Home Office files in which he did so. There is, however, a Home Office email dated 10 January 2017, which notes “He responded to the Stage 1 letter by providing only evidence of the Modern slavery no evidence of him working, his residence or family life in the UK.” A later email of 23 January 2017 refers to a letter sent to the Home Office through the Safe House Society “from the NCA dated 6 June 2016 but nothing has been recorded since.” 6 June 2016 was the date of a letter from the National Crimes Agency to the Claimant stating that it had concluded that “there are reasonable grounds to believe that you have been a victim of modern slavery (human trafficking)”.

The challenged decision followed, in a decision letter dated 26 January 2017. The letter first stated that the Claimant would be deported to Poland, on the basis that the Secretary of State was “satisfied that you would pose a genuine, present and sufficiently serious threat to the interests of public policy if you were to be allowed to remain in the United Kingdom and that your deportation is justified under Regulation 21 [of the Immigration (European Economic Area) Regulations 2006]. You have raised no grounds as to why you should not be deported.” It cited his Polish criminal convictions, and the activation of his one year suspended sentence. The deportation, as I have mentioned, is subject to a pending appeal now awaiting a hearing in the First Tier Tribunal.

The same letter then notified the Claimant of the challenged decision to certify that Claimant’s removal would not be unlawful under section 6 of the Human Rights Act 1998, pursuant to Regulation 24AA of the Regulations. This decision was briefly expressed, in the following terms:-

“The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists because you have provided no grounds for believing that such a risk exists. Therefore it has been decided to certify your case under regulation 24AA.”

This decision, in applying only a serious irreversible harm test, failed to address the question posed by Regulation 24AA itself, which was whether, quoting Regulation 24AA(2):

“...despite the appeals process not having been begun or not having been finally determined, removal of [the Claimant] to the country or territory to which [the Claimant] is proposed to be removed, pending the outcome of [the Claimant’s] appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).”

The “serious irreversible harm” wording comes from Regulation 24AA(3) which states:-

“The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.”

However, that does not replace the primary question, which is the Human Rights Act question. The Secretary of State did not address that question.

The Defendant submits that this failure was not material, because no Human Rights Act claim had been made and it is not obvious what Human Rights Act claim might have been anticipated at that stage. The Claimant in argument before me has raised Article 4 of the European Convention on Human Rights (which Counsel paraphrases as “positive obligations towards a victim of trafficking”) and Article 8 (which Counsel paraphrases as “private life and the proportionality of removal”). However, the Defendant’s obligations towards the Claimant as a victim of trafficking had, on the face of it, been discharged by his extensive accommodation and support in the safe house, and no complaint had been made about that. There was no evidence that the Claimant had any formed family or other ties in the United Kingdom, having been trafficked, and then accommodated in the safe house.

Nevertheless, I accept that whether Human Rights Acts claims might be made, and whether any such rights had been breached, should have been considered as an essential part of the Regulation 24AA decision, and the letter did not do that.

Supplemental reasons for the decision to deport were provided on 6 July 2017. These do consider possible Human Rights Act claims, in an extensive passage between paragraphs 48-96 of the letter of 6 July 2017.

Moreover, in making her decision, the Secretary of State was bound to follow her own policy: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245 at paragraph 35. Her published policy guidance on Regulation 24AA of the Immigration (European Economic Area) Regulations 2006 was at the material time dated 9 May 2016 (“the Regulation 24AA Guidance”). This stated:-

“The fact that it has been decided in an individual case that removal would not breach the ECHR does not mean that the case owner can be satisfied that removal for a limited period pending the outcome of any appeal would not breach that person’s human rights. They are separate considerations. When considering whether removal pending the outcome of any appeal would breach the ECHR, case owners should assess the question on the basis that the person’s appeal will succeed and consider whether serious irreversible harm or a breach of ECHR rights would be caused by that temporary removal from the UK.”

The critical fact here is that the Secretary of State already knew that the Claimant’s prison sentence had been activated and that, therefore, he would be incarcerated for a year if he was deported to Poland, even on an interim basis. The position was analogous to extradition cases in respect of which the Regulation 24AA Guidance said:

“Extradition cases are not normally suitable for certification on the grounds that the person will be unable to return for their hearing and may be unable to conduct their case from abroad while in custody.”

Although not an extradition case, the Claimant’s Regulation 24AA removal as an EEA citizen was subject to Article 31(4) of the Citizens Directive (Directive 2004/38/EC) which, subject to exceptions which do not apply to the Claimant’s case, gave him an absolute right to submit his deportation appeal in person. It seems to me fanciful to suggest that the Claimant could conduct his appeal effectively from abroad, in prison. On the policy assumption that he would pursue an appeal, the Claimant should not have been certified for removal in circumstances where he would be incarcerated in Poland before he could submit his appeal and have it heard. To deport him before then would be to cause him serious irreversible harm. To do so was a breach of the policy, Wednesbury unreasonable, and unlawful.

An email disclosed by the Home Office very late (after the oral hearing before me had concluded), dated 7 August 2017, supports the conclusion I have reached in this respect. It says:-

“Although his decision was certified, it soon came to light that [Mr S] was wanted in Poland to serve an outstanding prison sentence there. As such, to enforce the certification would breach his Article 6 rights as he would not be able to return to the UK to be present at his appeal. He will therefore need to remain in the UK until his appeal rights are exhausted.”

The activation of the Claimant’s prison sentence did not come to light after the decision to certify. It was referred to in the letter containing the decision to certify.

A removal date was set for 21 April 2017 but this was deferred on 20 April, after the Claimant had given notice of his proposed judicial review claim. Another removal date of 25 June was set, but this was also cancelled, on 20 June 2017, by which time the Claimant had lodged his appeal against the deportation decision.

On 21 June 2017, the Defendant confirmed that no further action would be taken to deport the Claimant pending his deportation appeal.

The letter of 6 July 2017, providing more extensive reasons for the deportation decision, referred to the original decision to certify under Regulation 24AA and did not formally withdraw it. However, it maintained the concession that he would not be deported on an interim basis, as follows:

“It is noted that you have lodged an out of time appeal which has been accepted by the Asylum and Immigration Tribunal. Although we certified the decision to deport you under Regulation 24AA, we informed your representative in our letter dated 21 June 2017 that we will not enforce the certificate. You will be permitted to remain in the UK pending the outcome of the appeal.”

The hearing before the First Tier Tribunal was listed for 18 September and again on 13 October but, unfortunately, the transport to take the Claimant from detention to the hearings did not materialise on either occasion, for which the Home Office is responsible through its contractors, and no new date for the hearing has yet been set.

The certificate has not been withdrawn, but it is not being implemented until the appeal has been determined. It has not had any practical effect because the Claimant has not been removed and will not now be removed until his appeal against deportation has been determined.

In view of my finding that the decision under Regulation 24AA on 26 January 2017 was unlawful in the particular circumstances of the Claimant’s case, it is not necessary for me to address other arguments in support of that conclusion.

On 15 February 2017 the Claimant was arrested at his Safe House Society safe house. He has been in detention since then. The decision to keep him in detention from that date is the subject of the second challenge before me.

The history of the Claimant’s detention since his arrest on 15 February 2017 to date is as follows.

On 18 May 2017, solicitors for the Claimant sent a pre-action protocol letter challenging the failure to grant discretionary leave to remain and the decision to detain the Claimant, and alleging interference with his EU right to remain in the UK.

A Home Office note on 19 May 2017 referred to the letter. The note said the removal directions set for 25 May 2017 should be deferred, discussed possible discretionary leave to remain, and noted “Urgent consideration needs to be given to releasing Mr S in the meantime which is going to be looked at by the detention case owner and operational managers.”

On 25 May 2017, the Home Office notified the Claimant’s solicitors by email that they were in the process of submitting a release referral but sought from the solicitors a proposed release address. From this point, the question of the Claimant’s detention and the question of his accommodation on release, were discussed together.

In a letter dated 30 May 2017 the Home Office said it was “happy to put up a release referral for your client” but that “The onus is on your client to obtain a suitable release address; this would also apply if your client was applying for immigration bail. Please supply us with a suitable release address for your client.”

The Claimant’s solicitors replied on 12 June 2017 saying: “We expect the Home Office to arrange appropriate and suitable accommodation and support for our client in accordance with Article 12 ECAT and Article 11 EU Anti-Trafficking Directive...”

The Claimant’s appeal against deportation was launched, out of time, on 14 June 2017 and admitted by the First Tier Tribunal on 20 June 2017. On the same day, 20 June 2017, the Home Office notified the Claimant’s solicitors by email that the removal direction for 25 June 2017 had been cancelled.

On 21 June 2017 the Home Office wrote to the Claimant’s solicitors, principally on the matter of discretionary leave to remain. It rejected the allegation that he had been given inadequate accommodation and support as a victim of trafficking, saying that he had been given support in safe house accommodation during his 45 day reflection period (which began in June 2016) and he had been given extended support after that, until 15 February 2017, “so he received significantly more extra support than most other victims of trafficking.” After affirming the decision to deport, it concluded:

“It is noted that an out of time appeal lodged by your client has been accepted by the Asylum and Immigration Tribunal. Although we certified the decision to deport your client under regulation 24AA, we will not enforce the certificate. He will be permitted to remain in the UK pending the outcome of the appeal.

Accommodation

You have requested we release your client and return him to the safe house provider. We have made enquiries with the Modern Slavery Unit who are responsible for the victim care contract with the Salvation Army. As your client has had his recovery and reflection period and has left the NRM [i.e. the trafficking and modern slavery National Referral Mechanism], he is not eligible for government funded support and accommodation.”

The present judicial review proceedings were launched with an out of time Claim Form on 19 July 2017; Andrews J allowed an extension of time on 21 July 2017; and permission was granted by Nicola Davies J on 24 August 2017. The hearing before me has been expedited.

On 9 August 2017 the Home Office approved a release referral, and decided that section 4 accommodation should be provided. The Home Office says that this decision was “purely pragmatic”, the section 4 accommodation to be provided “exceptionally” (quoting evidence from Mr Daniel Dyer), since the Claimant is an EEA national whom the Home Office does not recognise as having Convention rights or EU Treaties rights which would in the ordinary case be required for the exercise of its section 4 powers.

However, the efforts to source such accommodation described in Mr Dyer’s witness statement did not for some time succeed in placing the Claimant and he remained in detention at the time of the hearing before me last week. Within a few days of the hearing, however, a section 4 address was found for him and he was released on Tuesday 7 November into that accommodation.

The reasons for detention in the Notice to Detainee dated 27 January 2017 are likelihood of absconding and release not being conducive to the public good, based on the Claimant’s “unacceptable character, conduct or associations”. These are, however, just ticked boxes. A fuller explanation was provided on the same date in a Minute of a Decision to Detain a Person Under Immigration Powers. This assesses risk of absconding, risks of re-offending, and risks of harm, all as medium; and cites his criminal history and sentences in Poland. At a couple of points, Romania rather than Poland is referred to, but I do not regard that as significant because the offences and sentences are otherwise all correctly described. There is reference to him being alcohol dependent and “potentially addicted to other illegal substances”, said to be spice. “He has refused any support from Healthcare. He is being funded for his addiction from the money he receives from the Salvation Army.” Under the heading “assessment of re-offending”, specific reference is made to his previous convictions again, and then this passage:-

“The offences are mainly theft related. [Mr S] is alcohol dependant and is relying on funds provided by the Salvation Army to fund his addition [sc. addiction]. There is no evidence to show that he has ever had stable employment in the UK therefore, it is likely that the potential exists for him to commit further offences of this nature in the future in order to support himself financially and to continue to fund his [addiction].”

Under the heading “Assessment of risk of harm to the public” there is further reference to the previous convictions, followed by this:-

“The circumstances surrounding these offences are unknown however his convictions indicates an anti-social attitude towards the public and community... There is no evidence to show that he has addressed his offending behaviour. [Mr S] is alcohol dependant and has refused any support from Healthcare. He therefore remains a risk of harm to the public. It is likely that the potential exists for him to commit further offences of this nature in the future in order to support himself financially and fund his [addiction].”

The final “Recommendation” section concludes as follows:-

“Alcohol is the main concern, he is alcohol dependent and has refused any support from Healthcare. In the light of all known circumstances, it is considered that release carries a risk of harm to the public and risk of re-offending. The risk is considered to outweigh the presumption in favour of release.

I propose that [Mr S] should be detained as a short-term measure pending the deportation decision being served on him and removal directions being set.”

I agree that there was a risk of offending given the circumstances identified in the Minute, and this material was not limited to the previous convictions but included the Claimant’s behaviour in the safe house, his alcohol problem, his consumption of illegal drugs and the lack of support available to him after he left the safe house. He had to leave the safe house even if he was not detained, because the period of prescribed support (45 days) had long since expired, and the Safe House Society were not prepared to keep him any longer.

The risk of absconding is not so clear. I bear in mind the observations of Dyson LJ in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraphs 53-56. The Claimant being of no fixed abode, with no family or other ties or other ongoing connections, meant that it would be difficult to find him in order to deport him. At the point when he was served with the deportation order, the Secretary of State was under no obligation to provide him with bail accommodation and suitable accommodation has, in any event, proved difficult to find over the last few months (an aspect that I consider in more detail below, in relation to the third challenge). The Claimant had a history of missed appointments and not responding to mobile telephone calls. The real risk that he would vanish, so that removal directions could not be executed, together with the also (in my judgment) moderate risk of offending, could justify detention for a period of time, but not an excessively long period. The risk was not a risk of absconding properly so-called, because that suggests a deliberate evasion, and there was no evidence that the Claimant would deliberately run away from deportation. However, it is the outcome and not the motive of a deportee who cannot be found which can be a relevant circumstance when considering short-term detention before deportation. I note that Simon Brown LJ in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at paragraphs 27-29 talks about the deportee “going to ground”. There is no magic in the word ‘abscond’. It is not in a statutory test. The risk that a person will vanish so that removal directions cannot be executed, even if not in a deliberate attempt to evade deportation, is a factor that may be present in some cases to a degree that could justify detention for a limited period.

I am not saying that every homeless person is liable to detention pending deportation. It must depend on the facts of the particular case, and detention is always the exception and not the rule. Nor does the risk that the person cannot be located justify detention for an indefinite period, any more than the risk of absconding properly so-called does (see R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888 per Dyson LJ at paragraphs 53 and 56).

The Claimant, as a trafficked person, was an adult at risk within the meaning of the Defendant’s policy, but there was no evidence that he would be (or has been) particularly vulnerable to detention. That is borne out by the Detention Review of 15 February 2017 (the day of detention).

The first basis of challenge to the detention is that the decision to deport was unlawful and the Regulation 24AA certification was unlawful, and hence the power to detain cannot have been lawfully exercised. I reject those submissions. Whether the deportation was unlawful is not for me to decide; it is a matter for the First Tier Tribunal and I will leave it to them. I have found that the Regulation 24AA certification was unlawful, but the decision to detain was based on the substantive decision to deport, rather than the certificate under Regulation 24AA (the Minute of Decision to Detain dated 27 January 2017 refers to “A signed deportation order” on p 1 and states “[Mr S] is the subject of a signed deportation order” on p 2).

The second basis of challenge is that “there was no prospect of his removal” (Grounds, paragraph 63). The Secretary of State’s discretionary power to detain an EEA national pending deportation is conferred by Regulation 24(3) of the Regulations, which imports into such cases the procedures in Schedule 3 of the Immigration Act 1971. These include paragraph 2(3) of Schedule 3, which provides:-

“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom...”

This power is subject to the well-established principles in Hardial Singh (see R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, 706) summarised in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888 [2003] INLR 196 per Dyson LJ at paragraph 46 as follows:-

“(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.

(ii)

The deportee may only be detained for a period that is reasonable in all the circumstances.

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

(iv)

The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

In my judgment, there was at first a reasonable prospect of removal before the period of detention became unreasonable in all the circumstances. The Claimant had not responded to the deportation warning letter served on him on 30 December 2016 with any reasons why he should not be deported. The time limit for his appeal was 14 days after service of the deportation notice which seems to have taken place on 15 February 2017; no appeal was lodged in that 14 day period. There was no challenge to the decision to deport until an out of time appeal on 14 June 2017 which was admitted by the First Tier Tribunal on 20 June 2017. The Claimant sent an unsealed judicial review application to the Home Office on 19 April 2017 which, as well as never being issued, seemed to lack substance, for reasons set out in a Home Office response dated 19 April 2017. (The grounds of the present judicial review applications, issued out of time on 19 July 2017, are quite different to those in the unsealed application.)

The first indication of a substantial challenge to the deportation order was the pre-action protocol letter dated 18 May 2017 and within a week the Home Office was agreeing to release, subject to resolution of the question of accommodation. Thereafter, no application to the First Tier Tribunal was made until it was out of time, on 14 June 2017, although it was admitted by the First Tier Tribunal on 20 June 2017.

By then, the Claimant had been detained for over 4 months. It might have been hoped to expedite the hearing, and so bring the matter to a conclusion within what might still have been a reasonable period in all the circumstances. But on 27 June it was recognised that the First Tier Tribunal’s Case Management Review hearing could not be expedited, and the first available date for a hearing would probably be 6 - 8 weeks after that. From that point, I consider that it was apparent that the Secretary of State would not be able to effect deportation within a reasonable period from the start of the detention in February.

This did not mean that it was unreasonable not to release the Defendant immediately on 27 June. The Home Office was entitled and perhaps even bound to take stock of the Claimant’s particular circumstances, including his lack of accommodation or support outside detention, and consider how best to manage any release. But only a relatively short time could be justified for that purpose. In my judgment, it became unreasonable to detain him on Hardial Singh principles by Friday 14 July 2017 at the latest.

It has been suggested that the Claimant also had an in-country appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. I do not agree. Section 82(1)(b) applies when the Secretary of State “has decided to refuse a human rights claim made by [a person]”. In this case, the Secretary of State’s decision to detain was made when the Claimant had made no human rights claim, and there had been no decision to refuse any human rights claim he had made.

A further basis of challenge is that decision to detain was contrary to the Defendant’s published policies. These included the Defendant’s Chapter 55 Enforcement Instructions and Guidance (“Chapter 55”) and her Adults at risk in immigration detention policy, dated 6 December 2016 (“the AAR Policy”).

I do not think there was any failure to follow Chapter 55, although I have been referred, particularly, to paragraphs 55.1.3; 55.3.1; and 55.8. So far at the AAR Policy is concerned, it is clear that the Claimant was an adult at risk within the meaning of that policy, because he had been trafficked, but the evidence does not suggest that, by the time he was detained in February 2017, which was 8 months after an extended period of support in safe houses, he had vulnerabilities other than his alcohol and drug use, both of which were considered and factored in to his detention reviews, and could be managed in detention. Although there is a presumption against detention of a trafficked adult at risk, the AAR Policy allows for detention if the immigration factors outweighed the risk factors such as to displace the presumption that individuals at risk should not be detained. In my judgment, this balancing exercise did, on the facts of the Claimant’s case, permit his detention for a short time with a view to deportation. It did not make his detention unlawful prior to the date of Friday 14 July 2017 which I have arrived at above.

On 22 February 2017 the Claimant applied for bail accommodation under section 4(1)(b) of the Immigration and Asylum Act 1999 (“the 1999 Act”). This was refused on 27 March 2017. That refusal, and the continuing failure to provide such accommodation, was the subject of the third and final challenge before me.

Section 4(1) of the 1999 Act provides:-

“The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons - ... (b) released from detention...”

It is to be noted that use of the word “may” means that this confers a discretionary power, and does not impose an absolute duty.

The Claimant, as an EEA national, was not eligible for section 4 accommodation unless he was within paragraph 3 of Schedule 3 to the 1999 Act, which provides that the exclusion:-

“...does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of -

(a)

a person’s Convention rights;

(b)

a person’s rights under the Community Treaties.”

The application for section 4 accommodation was made on 22 February 2017 on a form provided by the Home Office. It did not identify any Convention or Community rights that were engaged, but the form did not specifically prompt for this. The application was rejected on 27 March 2017 on that basis that “you have not demonstrated that there would be any breach of ECHR if support were to be withheld by the Secretary of State”. The Home Office response went on, however, to consider and reject a possible Article 3 claim (the right not to be subjected to torture or to inhumane or degrading treatment or punishment). It did so by reference to the Claimant’s right to work in the UK (which was wrong, because his deportation decision dated 26 January 2017 had specifically warned him that he was “not allowed to work in the UK” and “not entitled to claim benefits”); the possibility of a return to Poland (he faced incarceration there, which would deprive him of his right to submit his deportation appeal in person, as discussed above, but by this date the time for lodging an appeal against the deportation decision had expired, and the Claimant had not yet lodged an out of time appeal); and the possibility of moving elsewhere in the EU to work (although there is no evidence that he would be better able to fend for himself there than in the UK).

I do not consider the faults in the reasoning of that decision to be material at the time it was made because no bail accommodation was available, it proved difficult to find when efforts to seek it were, later, made; and the Claimant was being lawfully detained at this point, as I have found to be the case until 14 July 2017.

On 4 May 2017, the Claimant completed an application to be released on bail, which was never submitted to the Home Office and therefore could not be considered by them. This did not include an application for bail accommodation. On the contrary, it said “I have a job waiting as well as friends and accommodation in the UK”. However, this is not relevant, both because the Home Office did not see it, and because it does not appear to have been true.

The pre-action protocol letter dated 18 May 2017 did not apply for bail accommodation or refer to section 4, although it did suggest “release... back to a suitable safe house”. It appears from the Home Office response dated 30 May 2017 that, in a subsequent telephone conversation, the Claimant’s representatives suggested the Claimant “could return to the safe house where he was residing prior to being detained”. This turned out not to be possible. The Home Office letter concluded “The onus is on your client to obtain a suitable release address; this would also apply if your client was applying for immigration bail.” It agreed to release if such an address were to be provided.

On 12 June 2017, the Claimant’s solicitors wrote the letter quoted above, saying “We expect the Home Office to arrange appropriate and suitable accommodation and support for our client in accordance with Article 12 ECAT and Article 11 EU Anti-Trafficking Directive so that he can properly recover from his exploitation...” On 21 June 2017, the Home Office confirmed, having made enquiries with the Modern Slavery Unit, and in response to the request for accommodation pursuant to the anti-trafficking Treaty and Directive, “As your client has had his recovery and reflection period and has left the NRM, he is not eligible for further government funded support and accommodation”. I reject the challenge to the decision to refuse accommodation made before me on the basis that it is a breach of the anti-trafficking measures. The Claimant had been given sufficient support to satisfy the obligations in those measures before he was detained in February 2017, beginning in June 2016. He had support over a longer period than most trafficked individuals are provided with in the UK.

The next reference to a claim for section 4 accommodation is in the judicial review application dated 19 July 2017. This points to the refusal of 27 March, and the “second application of May 2017” which was never, as I have found, presented.

On 9 August, as I have mentioned, the Home Office agreed to provide section 4 bail accommodation, but without conceding that it was under any obligation to do so. A witness statement from Mr Dyer of the Home Office explained what steps had been taken to identify and provide this accommodation, none of which had by the time of the hearing before me last week been successful. Lincolnshire County Council assessed the Claimant at an interview on 14 August 2017, but refused to provide accommodation, having concluded that he was not eligible for services under the Care Act 2014. The National Offender Management Service was asked to identify suitable accommodation on 4 August; but the places they found fell through, due to errors in paperwork or contractual disputes for which the Claimant was not responsible. G4S required information which the Defendant did not feel able, for data protection reasons, to provide, although that has now been resolved.

On 13 September 2017, the Defendant agreed to release the Claimant on to the street. This was successfully objected to by his representative, who threatened an injunction and asserted the Defendant’s “responsibility to find accommodation for my client”.

Efforts to source section 4 accommodation continued, but it was only during the weekend after the hearing concluded before me on 1 November that suitable accommodation was identified, and the Claimant was released into it on Tuesday 7 November 2018. That does not, of course, remove the Claimant’s challenge to the Defendant’s refusal and, upon a change of mind, failure to provide it sooner.

Since any rights the Claimant may have under section 4 require identification of a Convention or Treaty claim, reliance has been placed before me on Articles 3, 5 and 8 of the European Convention on Human Rights. Article 8 is the right to respect for private and family life. No infringement of this has been shown; since the Claimant has no family or other relationships or private life in the UK which have been threatened by the Defendant. Article 5 is the right to liberty and security of person, and I have decided that the Claimant was not entitled to be released from detention before 14 July.

Article 3 is the right not to be subject to inhuman or degrading treatment. There is no evidence that the Claimant’s treatment in detention has in any way been inhuman or degrading, or that it amounts to torture or punishment. But there is a question about whether his Article 3 rights would be breached if he were to be released on to the streets as a homeless person with no means of support and no accommodation.

In R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, late asylum seekers refused support under section 55 of the Nationality, Immigration and Asylum Act 2002 succeeded in their claim for judicial review by reference to Article 3 of the Convention. Lord Bingham’s judgment, at paragraphs 6-9, included the following:-

“6.

Article 3 of the European Convention prohibits member states from subjecting persons within their jurisdiction to torture or inhuman or degrading treatment or punishment. Since these appeals do not concern torture or punishment, the focus is on inhuman and degrading treatment. Does the regime imposed on late applicants amount to “treatment” within the meaning of article 3? I think it plain that it does. Section 55(1) prohibits the Secretary of State from providing or arranging for the provision of accommodation and even the barest necessities of life for such an applicant. But the applicant may not work to earn the wherewithal to support himself, since section 8 of the Asylum and Immigration Act 1996, the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225) and standard conditions included in the applicant's notice of temporary admission (breach of which may lead to his detention or prosecution) combine to prevent his undertaking any work, paid or unpaid, without permission, which is not given unless his application has been the subject of consideration for 12 months or more...

“7.

May such treatment be inhuman or degrading? Section 55(5)(a) assumes that it may, and that assumption is plainly correct. In Pretty v United Kingdom (2002) 35 EHRR 1, the European court was addressing a case far removed on its facts from the present, but it took the opportunity in para 52 of its judgment... to describe the general nature of treatment falling, otherwise than as torture or punishment, within article 3. That description is in close accord with the meaning one would naturally ascribe to the expression. Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to “your mountainish inhumanity”.

8.

When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.

9.

It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed.”

In Razai and Others v Secretary of State for the Home Department [2010] EWHC 3151 (Admin), Nicol J observed at paragraph 24 that section 4(1) “confers a power on the SSHD to provide accommodation, not a duty” (emphasis in the original). He noted (at paragraph 26) a concession by Counsel for the Secretary of State “that there was a duty on the SSHD to use reasonable endeavours to provide a bail address if the person concerned would otherwise be likely to remain in detention.” That concession was not made before me, and Counsel for the Secretary of State before me argued against it.

I do not think that detention could be justified simply on the basis that release would place the Claimant on the streets. If it is unacceptable to place the Claimant on the streets, he should be provided with bail accommodation. Detention is not a proper substitute for such accommodation once detention cannot otherwise be justified. Detention could not be justified either, of course, if it is acceptable to place the Claimant on the streets.

Nicol J also said this (at paragraph 25 of Razai):-

“...Mr Armstrong on the Claimants' behalf submitted that the SSHD was under a duty to use reasonable endeavours to provide accommodation when application for such accommodation is made. He relies on a trilogy of cases concerning s.117 of the Mental Health Act 1983. This gives health authorities a duty to provide aftercare services for those patients who have been discharged from compulsory detention under s.3 of the 1983 Act. The first of these cases, R v Camden and Islington Health Authority ex parte K [2001] EWCA Civ 240, concerned the position prior to discharge. The health authority conceded that it had a power to take preparatory steps; it should normally use this discretionary power to use reasonable endeavours to fulfil conditions dependent on which the Mental Health Review Tribunal had indicated it was prepared to order release; and failure to use such endeavours in the absence of strong reasons would be likely to be an unlawful exercise of discretion - see [20]. Lord Phillips MR endorsed these concessions - see [29]. Although, as Stanley Burnton J observed in R (B) v Camden London Borough Council [2005] EWHC 1366 (Admin) at [60], the point was not the subject of competing argument, a similar conclusion was expressed by the House of Lords in R (H) v Secretary of State for the Home Department [2003] UKHL 59 when Lord Bingham said at [29], ‘the duty of the health authority, whether under s.117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the condition laid down by the Tribunal.’ ”

I think there is also assistance to be gained on this point, albeit in a different context, from R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 per Lord Bingham at paragraph 5, where he said, in relation to section 55 of the Nationality, Immigration and Asylum Act 2002:

“Where (and to the extent) that exercise of the power is necessary, the Secretary of State is subject to a duty, and has no choice, since it is unlawful for him under section 6 of the 1998 Act to act incompatibly with a Convention right. Where (and to the extent) that exercise of the power is not necessary, the Secretary of State is subject to a statutory prohibition, and again has no choice. Thus the Secretary of State (in practice, of course, officials acting on his behalf) must make a judgment on the situation of the individual applicant matched against what the Convention requires or proscribes, but he has, in the strict sense, no discretion.”

Would it be a breach of his Convention rights for the Secretary of State to release the Claimant on or after 14 July 2017 without providing him with section 4 accommodation? In my judgment, it would. He had no means and no sources of support and he had no means of supporting himself. He was not entitled to work and he was not entitled to benefits. His release from detention by the Secretary of State without section 4 accommodation to go to would therefore leave him without “shelter, food or the most basic necessities of life”, to quote Lord Bingham in Limbuela. The Claimant is a man in the prime of life, but his mental and physical health, particularly given his alcohol problem, and the absence of any remaining facilities or sources of support for him (whether from the Safe House Society, Lincolnshire County Council, or anyone else) mean that releasing him on to the streets, even in the middle of the summer, would on any “fair and objective assessment of all relevant facts and circumstances” (to quote Lord Bingham again) cause him to face “an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.” He would be obliged to sleep in the street for an indefinite period, with all the privations that follow, including difficulties in eating, sleeping, and keeping clean. This was in my judgment sufficient to entitle him to section 4 bail accommodation from the Secretary of State, upon release pending his deportation. The position is different on the facts from that considered by Kerr J in Machnikowski v Secretary of State for the Home Department [2016] 1 WLR 1655 at paragraphs 77-78.

That does not mean the Claimant would be entitled to remain in the accommodation if, by his own actions, he were to deprive himself of it; for example, by misconduct leading to expulsion. That would not be an act of the Secretary of State, and she would not have an obligation to find other accommodation under section 4 in that case.

It is clear from Mr Dyer’s witness statement that this accommodation is not easy to find. However, some of the difficulties, such as failures to process paperwork, or to resolve data protection issues, or to solve contractual disputes, are not of a nature to absolve the Secretary of State from her obligation indefinitely. The date of 14 July 2017 (which I have found marked the end of the period when the Claimant could lawfully be detained) already builds in a period to make suitable arrangements. In my judgment, section 4 accommodation could and should with reasonable endeavours have been provided from that date.

In summary, my conclusion on the three challenges before me is that:-

Counsel have agreed to try and agree an order and directions to follow on my judgment. In the absence of agreement, I will hear submissions.